Federal drug prohibition in the United States is embodied in the Controlled Substances Act, which bans drugs under federal authority. Guests on The Bob Zadek Show have treated that statute as constitutionally suspect, described the machinery by which Washington gets state and local police to enforce it, and traced the federalism conflict that arises when states legalize conduct the federal government still outlaws.
The constitutional objection to the Controlled Substances Act
Jeffrey Miron told Bob Zadek that there has never been any constitutional amendment giving Congress authority to outlaw drugs, and that many constitutional scholars, and certainly libertarians, would argue the Controlled Substances Act is itself unconstitutional and should be stricken down Miron vs. Sessions on the Drug War (2017). He contrasted this with alcohol prohibition, where Congress and the country adopted the 18th Amendment, which gave Congress authority to outlaw intoxicating liquors. Miron noted that some libertarians would argue that amendment was itself inconsistent with other parts of the Constitution and therefore highly problematic, but he said Congress at that point at least recognized that the Constitution gives the federal government only a small number of explicitly enumerated powers — making war, coining money, raising taxes in certain ways — and does not give it authority to outlaw a particular substance.
Miron added that even setting aside that constitutional conflict, under existing interpretations the federal government can enforce its federal prohibition in the various states: if a federal officer identifies someone possessing or trafficking in an outlawed drug, the authority under the Controlled Substances Act and its sequelae allows enforcement against citizens of any state. But that, he said, in no way means states have to criminalize the conduct themselves or cooperate with federal enforcement.
Federalism and state legalization
Miron told Zadek that interest in enforcing federal drug laws, especially for marijuana, had waned at the state level to the extent that eight states had legalized recreational use and about 15 more had legalized for medicinal purposes Miron vs. Sessions on the Drug War (2017). Zadek put the number of states that had decriminalized recreational marijuana at 11, and asked how states could legally decriminalize if it is a federal crime. Miron’s short answer was that federal law does not require states to criminalize drugs. He noted that during alcohol prohibition a whole bunch of states never outlawed alcohol, including many of the more populous states, and enforcement came only from the federal government.
Miron framed then-Attorney General Jeff Sessions’ position as interesting and frustrating for libertarians. He said libertarians might have some sympathy for the idea that elected and appointed officials should not arbitrarily decide to enforce some laws and not others, because that could lead to laws enforced in ways that are racist, foster crony capitalism, or promote a political agenda. But he called the position overall not at all convincing. Sessions, he said, could say he feels bad about enforcing drug laws but that it is part of his job, while simultaneously working to repeal them — and he was not saying anything remotely like that. Miron also noted that prosecutors in every setting have finite resources and cannot vigorously enforce every law on the books, so every prosecutor has some scope to decide priorities. The first-order fix, he argued, is not to reform Sessions’ attitude but to convince the electorate to change the federal law and get it off the books.
Equitable sharing and policing for profit
Because the federal government lacks a general federal police force, Miron said, it operates a policy of returning the proceeds from seized assets to cooperating state and local agencies as a way of enticing them to cooperate in the War on Drugs Miron vs. Sessions on the Drug War (2017). Zadek supplied the name for this: equitable sharing. Zadek described it as a concept that encourages municipalities and state governments to enforce federal drug laws by confiscation of property, with states retaining a portion of confiscated property that otherwise would go to Washington. He called it, in broad terms, policing for profit, and said the federal government, lacking the resources to enforce its own laws, can only do so by incentivizing state and local governments — by paying them money, by hiring them as subcontractors to enforce federal law.
Bill Maurer, speaking on a later episode, said there have been efforts at the states to rein in civil asset forfeiture and efforts at the federal level as well, but that the federal efforts have not been successful Abusive Fines and Fees (2022). He called it an enormous cash cow for a lot of people, and noted that the state of Michigan had just made it easier for police forces to seize cash at airports in Michigan. In the government’s view, or at least the view of a lot of people in government, he said, cash means you’re a drug dealer, so traveling with a great deal of cash can result in seizure, with the owner either losing it or spending a lot of time fighting to get it back. Maurer said governments like revenue and like finding sources of revenue, and that a lot of people in government do not care about due process or constitutional rights if it means being deprived of a dollar they think they should have.
The mechanics of equitable sharing
Mike Greenberg explained to Zadek that equitable sharing is a system allowing proceeds from forfeited cash, cars and other property to be split among state and federal law enforcement agencies Civil Asset Forfeiture Revisited (2023). When state and local officials engage in a roadside stop and take a thousand dollars or a car in civil forfeiture because they think it may be connected to a drug crime, they pass the asset to the federal government to prosecute the forfeiture case. The federal government handles the paperwork and judicial proceedings and then remits a share of the proceeds back to the local agency. Greenberg said it doubles down on the perverse financial incentives, and described it as the federal government paying a commission to local government for doing the work at the street level.
Greenberg added that many state legislatures have ended the causal connection between a traffic stop and money going directly to the seizing agency, requiring instead that proceeds go into a general fund rather than directly to law enforcement or the prosecutor’s office. The equitable sharing program, he said, still lets those agencies get a cut back from the federal government directly rather than its going to the state general fund as the legislature intended.
Zadek described the underlying dynamic: a local police force that must allocate finite resources between protecting houses from break-ins, for which it gets no federal money, and traffic stops on the interstate, for which it makes a bucket of money from the feds, is in effect bribed to divert resources from its core mission to activities the community does not care about as much. He described the classic stop — a minority citizen driving a fancy car, an officer saying the person did not look like they could afford it, a police dog alerting for drugs, a search finding a joint and a thousand dollars, the cash seized, and the driver having to go to court to get it back, sometimes from out of town and deciding to just let the money go Civil Asset Forfeiture Revisited (2023).
Congressional limits and de facto federalism
Zadek, in a 2020 episode, said that with respect to the drug war, use of marijuana and other Schedule I controlled substances is illegal and violates federal law, yet Washington allows people to violate federal law so long as they comply with state law Did California Just Declare Itself a Nation-State? (2020). He said Congress has not allowed Washington to spend even one red cent of federal money to enforce federal drug laws against somebody in compliance with state laws. He grouped this with sanctuary cities and state and local behavior during the COVID-19 virus as examples of localities rejecting one-size-fits-all policy, describing it as behavior as if a form of secession.
Frank Buckley traced the practice further back, saying it began when Northern states refused to enforce federal fugitive slave laws, and that the Supreme Court held the feds could not enlist state employees or state police to enforce federal laws Did California Just Declare Itself a Nation-State? (2020). Buckley said the feds cannot enlist state troopers to enforce federal drug laws or immigration laws, and called it simply an example of federalism. Pot is illegal under federal law, he said, but the feds cannot really enforce it — there are practical and legal limits to federal enforcement across the country. He described an expansion of federal criminal law rubbing against local feelings, and said what is needed is a kind of umpire to police that, with the Supreme Court rediscovering federalism and pushback from the states.
Across episodes
The topic recurs across five episodes spanning 2017 to 2023, and the excerpts show no development in the argument so much as repetition with variation. Miron in 2017 supplied the constitutional objection to the Controlled Substances Act and the description of equitable sharing as an enticement to state cooperation; Zadek named the doctrine and called it policing for profit. Maurer in 2022 added the Michigan airport-cash example and the failure of federal reform efforts. Greenberg in 2023 supplied the procedural mechanics — the asset passed to the federal government for prosecution, the share remitted back — and the point about state legislatures routing proceeds to general funds. Buckley in 2020 supplied the historical origin in Northern refusal to enforce fugitive slave laws and the Supreme Court’s holding that the feds cannot enlist state employees. Zadek’s 2020 framing of congressional spending limits and de facto secession is the one claim in the excerpts that is not echoed elsewhere.
What the sources do not cover
The excerpts do not state which amendment the Controlled Substances Act is alleged to violate, nor identify any court ruling on its constitutionality. They do not name the statutes governing equitable sharing or the Supreme Court case Buckley referenced on enlisting state employees. The excerpts also do not state the outcome of the U.S. Private Vaults case that Greenberg mentioned, or the terms of any state legalization measure.